Southeast Bank, NA v. Almeida

693 So. 2d 1015, 1997 WL 227471
CourtDistrict Court of Appeal of Florida
DecidedMay 7, 1997
Docket96-1846
StatusPublished
Cited by7 cases

This text of 693 So. 2d 1015 (Southeast Bank, NA v. Almeida) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Southeast Bank, NA v. Almeida, 693 So. 2d 1015, 1997 WL 227471 (Fla. Ct. App. 1997).

Opinion

693 So.2d 1015 (1997)

SOUTHEAST BANK, N.A., and First Union National Bank of Florida, Appellants,
v.
Alma ALMEIDA, Stanley Tashman, Namon Gilbert, Appellees.

No. 96-1846.

District Court of Appeal of Florida, Third District.

May 7, 1997.
Rehearing Denied June 11, 1997.

*1016 Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A., and Bradford Swing, and Mark P. Dikeman, Miami, for appellants.

Lyons & Farrar, P.A., and Douglas S. Lyons, and Marsha L. Lyons, Coral Gables, for appellees.

Before GERSTEN, GREEN and SHEVIN, JJ.

GREEN, Judge.

Southeast Bank, N.A. and its successor in interest, First Union National Bank of Florida (collectively "bank") appeal a non-final order granting appellees' motion for class certification in the action below. We reverse upon our holding that as a matter of law, this order violates Florida's long-standing fraud class action rule prohibiting fraud class action suits based upon separate agreements.

I

The case below was filed on September 18, 1991 by the appellees. The appellees are all judgment debtors of the bank in that they are all former holders of credit cards issued by the bank who were sued by the bank for the nonpayment of the amounts shown on their respective accounts. Default judgments were duly entered in favor of the bank in each suit when none of the appellees stepped forward to answer or otherwise appear in their respective suits after notice.

*1017 According to the general allegations of the amended complaint for class certification below, the bank conspired with its former legal counsel, Blackwell, Walker, et al., in each of these collection suits to fraudulently maximize the amount of the judgment awarded against the appellees by unlawfully seeking to collect interest accrued on a compounded balance comprised of both principal and interest (i.e., "interest on interest"). The unlawful interest amount appeared in each complaint and affidavit of indebtedness filed against each appellee as well as in the settlement agreements procured by the bank with some of the appellees. The appellees assert that the court relied upon the fraudulent misrepresentations made by the bank as to the interest owed in entering the default judgments.

Based upon these general allegations, the appellees seek various forms of relief in a seven count amended complaint. In Count I of this complaint, the appellees have filed in an independent action pursuant to Rule 1.540(b), Fla. R. Civ. P. to set aside and reopen default judgments and/or settlement agreements entered between 1981 and 1991 on the basis of extrinsic fraud. The appellees seek to have these judgments and/or settlement agreements set aside to permit them to raise meritorious defenses to these actions. In Counts II and III, the appellees seek unspecified damages for usury under both state and federal law, respectively. Count IV is an action for unspecified damages under the "Florida Consumer Collection Practices Act," sections 559.55-559.78, Florida Statutes (1991). In Count V, the appellees seek damages under the federal "Truth In Lending Act," 15 U.S.C. Section 1601 et seq. Count VI is an action for rescission of all settlement agreements entered into between appellees and the bank. Finally, Count VII is an independent action brought pursuant to Rule 1.540(b), to set aside all judgments entered in favor of the bank within the one year period preceding the filing of the action below on the basis of intrinsic fraud.

II

The appellees' motion for class certification came on for hearing before the court below. Pursuant to Rule 1.220, Fla. R. Civ. P., the trial court found, inter alia, that there were common issues of fact[1] and law[2] to justify class certification. Accordingly, pursuant to this rule and this court's decision in Broin v. Philip Morris Co., 641 So.2d 888 (Fla. 3d DCA 1994), review denied, 654 So.2d 919(Fla.1995), the lower court granted class certification. The class as certified was defined as:

Any personal 18 percent card holder with Southeast Bank against whom Southeast has obtained a default judgment or [settlement] agreement on law suits commenced by Blackwell, Walker, et al., which includes *1018 interest on both principal and accrued interest since 1981.

III

On this appeal, the bank first asserts that the trial court erred in certifying the class because of the prohibition in Florida against fraud class actions based upon separate contracts. We agree. This fraud class action rule was first enunciated in 1955 by our supreme court in Osceola Groves, Inc. v. Wiley, 78 So.2d 700 (Fla.1955). In Osceola, the supreme court considered decisions of other states as well as the federal courts and observed that with reference to the subject of similar frauds practiced on various persons as the basis of a representative suit, it is stated in Note, 1938, 114 A.L.R. 1015, 1019 that:

Thus far, neither under existing codes nor under general rules of law, has a representative action to recover damages for similar frauds practiced on numerous persons been upheld. In general, the objections to such suits seem to be the same as those applying to representative suits to rescind for fraud; namely, that the demands of the various defrauded parties are not only legally distinct, but each depends upon its own facts, and that a material difference in facts may exist. Furthermore, a choice of remedies is ordinarily presented, and the plaintiff cannot know that other persons similarly situated will not elect to affirm the fraudulent transaction.

78 So.2d at 702. The court indicated that in order to institute or defend a class action wherein fraud is alleged, the class members must: 1) be engaged in a cooperative enterprise; 2) have a joint pecuniary interest; and 3) not have a choice of remedies which may be subject to separate and distinct defenses. Id. Thus, based upon these considerations, the court held that where: 1) each of the Osceola plaintiffs had separate contracts with the defendant and there was no showing of a cooperative enterprise; 2) there was no showing that any of the plaintiffs had a pecuniary interest in any contract other than his/her own; and 3) each of the Osceola plaintiffs had a choice of remedies available and that their rights of actions may be subject to separate and distinct defenses, it would work an injustice to permit the suit to proceed as a class action. Id. Since Osceola, the supreme court has consistently reaffirmed its ban on fraud based class action suits for individual agreements. See Lance v. Wade, 457 So.2d 1008, 1011 (Fla.1984); Avila South Condominium Ass'n, Inc. v. Kappa Corp., 347 So.2d 599, 608-09 (Fla.1977).

Similarly, in the case before us, we must also conclude that a class action is improper where the fraudulent claims of the various purported class plaintiffs involve separate settlement agreements and/or default judgments with the bank and there is otherwise no contractual relationship or cooperative enterprise between the plaintiffs themselves. See Osceola, 78 So.2d at 702; Equitable Life Assurance Soc'y v. Fuller, 275 So.2d 568, 569 (Fla. 3d DCA 1973). There may be varying reasons why each of these plaintiffs executed a settlement agreement with the bank and/or allowed a default judgment to be entered in favor of the bank.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

KPMG PEAT MARWICK LLP v. Barner
799 So. 2d 308 (District Court of Appeal of Florida, 2001)
Tabas v. Union Planters Bank, N.A.
771 So. 2d 607 (District Court of Appeal of Florida, 2000)
Yribarren v. Capital Bank
755 So. 2d 199 (District Court of Appeal of Florida, 2000)
Humana, Inc. v. Castillo
728 So. 2d 261 (District Court of Appeal of Florida, 1999)
Oruga Corp. v. AT&T WIRELESS OF FLORIDA
712 So. 2d 1141 (District Court of Appeal of Florida, 1998)
Ford Motor Co. v. Magill
698 So. 2d 1244 (District Court of Appeal of Florida, 1997)
Cricket Club Condominium, Inc. v. Stevens
695 So. 2d 826 (District Court of Appeal of Florida, 1997)

Cite This Page — Counsel Stack

Bluebook (online)
693 So. 2d 1015, 1997 WL 227471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southeast-bank-na-v-almeida-fladistctapp-1997.